Drop that compact disc, music thief

by Mathew on December 29, 2007 · 22 comments

If you’re like me, you’ve ripped hundreds — perhaps even thousands — of compact discs, and copied the music files to your hard drive so that you can play them on your computer, or on a portable music player. You may even have done so on the advice of Apple, whose slogan “Rip, Mix, Burn” helped to launch iTunes. In any case, you and I are both common thieves, according to the latest gambit from the record industry.

As a recent story in the Washington Post notes, the RIAA has filed documents accusing an Arizona man of copyright infringement for simply having 2,000 songs on his computer — even if those songs weren’t downloaded from peer-to-peer networks, but were copied from CDs that he legally purchased. According to the record industry’s lobby group, making a copy of a CD is theft, plain and simple.

This isn’t the first time the industry has tried to make this argument. Earlier this month, one of the RIAA lawyers in the case said that “when an individual makes a copy of a song for himself, I suppose we can say he stole a song.” And in the regular triennial review of the DMCA last year, the industry argued before Congress that making even one copy for personal use is copyright infringement.

As several people have pointed out, this is a reversal of the testimony that the record labels themselves put before the Supreme Court in the case against the Grokster file-sharing network. At that time, a representative of the industry told the court that “It’s perfectly lawful to take a CD that you’ve purchased, upload it onto your computer, [and] put it onto your iPod.” Now, that same activity is apparently theft.

Scott Karp of Publishing 2.0 says that the record industry could be the first industry to actually be destroyed by digital technology, and he’s not the only one. Music insider Bob Lefsetz has made similar comments — and at times like these, the impending doom of the RIAA and the traditional label structure seems almost inevitable. I have a feeling that this view of the industry is not at all uncommon.

Note: The meaning of the RIAA’s comments in the current case is unclear (see Shelley’s comments below). As this post describes, the wording in the record industry’s brief appears to have been changed to refer to files that appear in a shared folder. But it’s clear from other comments, as I note in this post, that the RIAA believes simply copying a CD is infringement — although it may not be prepared to argue that in this particular case.

  • http://www.webomatica.com/wordpress/ webomatica

    Yep I agree this is a load of hooey. If the RIAA really takes their idea seriously and tries to sue people who rip commercial CDs, they ought to be fair and also sue all the companies that allow ripping to take place – all the major computer manufacturers, sellers of blank CD media, and heck the record stores too.

  • http://www.mathewingram.com/work mathewi

    Good point, Jason.

  • http://scrawledinwax.com scrawledinwax

    To me, it seems like the second part of this argument is always missing. For the sake of it, let's assume my brain fell out of my ass and I agreed that ripping a CD was stealing. What then? Does that mean I need to repurchase electronic copies of all my CDs? Or individual, DRM'ed copies of each song for each different device I have? The mentality that underpins the RIAA's approach is a desire for digital music to have never been invented. How else can you explain their statements or their complete lack of a workable business model?

  • http://burningbird.net Shelley

    Actually, Mathew, you read this one wrong. I can't stand the RIAA, but what they said in court documents is that it's a violation of copyright law to rip a legally purchased CD and place the music in a P2P file sharing folder. By doing so, the RIAA implies, they're making that music available for illegal access.

    This is a big difference from you ripping your CDs to your computer so you can play on your MP3 player or iPod.

  • http://www.mathewingram.com/work mathewi

    Shelley, I will go back to the original article when I get a chance,
    but based on what I recall reading about this case and the comments
    from the RIAA lawyer in the Jammie Thomas case, the industry is
    talking not just about copying and placing copies in a P2P folder, but
    copying at all for any reason.

  • http://burningbird.net Shelley

    Not in this case, the court documents are very clear. You can read the plaintiff filing yourself. In fact, the document even specifically states:

    “Once defendant converted Plaintiff's recording into compressed .mp3 format and they are in his shared folder, they are no longer the authorized copies distributed by plaintiffs.”

    My biggest concern when I see people misinterpreting events such as this, is that this could end up generate an accidental court decision that could be interpreted as ripping MP3s for personal use from legally purchased CDs is illegal.

    Right now, the copyright issue is related to 'publication' of the ripped music, not the actual conversion of the music. The person putting the music into the shared folder is 'publishing' the music, whether the music is actually distributed or not.

    It's actually a rather fascinating brief to read. Too bad the Washington Post article writer didn't bother reading it.

  • http://www.mathewingram.com/work mathewi

    Fair enough, Shelley. I will take your word on the filing in this
    case. But at the same time, it seems fairly clear from the other
    comments I mentioned in my post — the RIAA lawyer's remarks, as well
    as the comments made during the DMCA review — that the industry is
    trying to effectively criminalize copying for any purpose.

  • http://burningbird.net Shelley

    Mathew, no, I'd say either the comments were out of context, or someone was being a cowboy.

    The RIAA knows that if they tried to go after people for just ripping CDs to their computer for loading into iPod, they'd effectively slit their own throats, while at the same time turning the might of Amazon, Microsoft, Apple, and various other giants against them.

    The point of my comment isn't necessarily related to RIAAs nefarious plans, but that you wrote, and linked to others who also wrote, that in this filing the RIAA tried to go after the person purely because he ripped CDs to his computer. Curious: are you going to post some kind of correction?

  • http://www.mathewingram.com/work mathewi

    I will certainly make note of it when I get the chance, if only to
    point to the filing and your comment — I'm currently in transit.

    I think the comments made before the Congressional committee reviewing
    the DMCA were more than just the bragging of a lone cowboy — I think
    it's obvious the RIAA is at least trying to reserve the option of
    arguing that any copying is theft.

  • http://www.drumsnwhistles.com/ Karoli

    Shelley,

    The use of the shared folder was for he and his wife only. They each burned their own CDs and put them in a shared folder for personal use. It was not made available via P2P on the Internet for sharing.

    Mathew's point still applies here, because the CDs were ripped to the computer for personal, not commercial use. Yet the RIAA would have them buy two copies of the same CD plus 2 copies of the MP3 version in order to be in compliance (assuming they listened to the music on their respective computers and own CD players)?

    The shared folder argument is a red herring, intended to distract from what the RIAA is really trying to do — make ripping CDs legally purchased to one's own computer for personal use illegal.

    Rat bastards.

  • http://www.drumsnwhistles.com/ Karoli

    Let me clarify what I wrote above…it's murky.

    I am not referring to the 11 MP3 files Howell allegedly distributed via KaZaa. But the specific language that the RIAA uses in their supplemental brief broadens the definition of “distribution” — here's the language:

    “Virtually all of the sound recordings on Exhibit B are in the “.mp3” format. (Exhibit 10 to SOF, showing virtually all audio files with the “.mp3” extension.) Defendant admitted that he converted these sound recordings from their original format to the .mp3 format for his and his wife’s use. (Howell Dep. 107:24 to 110:2; 114:1 to 116:16). The .mp3 format is a “compressed format [that] allows for rapid transmission of digital audio files from one computer to another by electronic mail or any other file transfer protocol.” Napster, 239 F.3d at 1011. Once Defendant converted Plaintiffs’ recording into the compressed .mp3 format and they are in his shared folder, they are no longer the authorized copies distributed by Plaintiffs. Moreover, Defendant had no authorization to distribute Plaintiffs’ copyrighted recordings from his KaZaA shared folder.”

    I have never used KaZaA, Napster or Limewire. But I have a folder of shared music on my computer that contains my personal MP3s, ripped from CDs that I bought for full price.

    Does the act of placing them in my shared folder for my family's use make me a pirate?

    If these arguments are accepted by the court, the RIAA will indeed make the argument that ripping CDs to your hard drive is a crime. The only question will become whether it's a discoverable crime. I'm unwilling to give them that kind of latitude.

    They should amend the brief to make it clear that ripping a CD to one's computer is not a criminal act. Placing the MP3s into a shared folder is not a criminal act either, unless that shared folder is intentionally made available to others on a P2P network like KaZaA. It's not clear to me whether the 2000 MP3s they're trying to include were all in the KaZaA folder or not.

    By broadening the definition, they're opening the door to become more militant and more intrusive.

  • http://www.mathewingram.com/work mathewi

    I agree with your interpretation, Karoli — it's obvious that the RIAA
    believes simply copying them and putting them in a shared folder is a
    copyright offence, or they wouldn't have used the word “moreover.”

  • http://burningbird.net Shelley

    Guys, the brief spent five pages defining what shared meant in this case — KaZaA shared folders, meant to have files publicly accessible for files to be copied across the internet.

    They didn't define 'shared' to be your little home network, where files from one Mac can be accessed by your PC or whatever. The brief talks about shared, in this case to mean a version of public distribution.

    Why must we go to such extraordinary means to overly vilify that which we don't agree with?

    The RIAA can't be 'bad' — it must be indulging in the ultimate of infamies…the lawyers will appear at our windows late one night, with police ready to take us away.

    Or must I remind you both of the risk of believing everything you read. Something about this is familiar.

    Thanks for the space to comment Mathew, but if I continue I'll just be branded a troll.

    Happy tarring.

  • http://www.mathewingram.com/work mathewi

    Shelley, no one is tarring or demonizing anyone. I think there is
    enough wiggle room in the RIAA's phrasing to allow the industry to
    argue that copying of any kind amounts to copyright infringement, and
    if you took the time to look at some of the commentary and filings
    made in the DMCA review I referred to I think you would agree — the
    industry's joint reply to Congress specifically says that just because
    they haven't pursued any action based on copying a legally acquired
    CD, that doesn't mean it qualifies as a non-infringing use.

  • http://www.mathewingram.com/work mathewi

    I will certainly make note of it when I get the chance, if only to
    point to the filing and your comment — I'm currently in transit.

    I think the comments made before the Congressional committee reviewing
    the DMCA were more than just the bragging of a lone cowboy — I think
    it's obvious the RIAA is at least trying to reserve the option of
    arguing that any copying is theft.

  • http://www.drumsnwhistles.com/ Karoli

    Shelley,

    The use of the shared folder was for he and his wife only. They each burned their own CDs and put them in a shared folder for personal use. It was not made available via P2P on the Internet for sharing.

    Mathew's point still applies here, because the CDs were ripped to the computer for personal, not commercial use. Yet the RIAA would have them buy two copies of the same CD plus 2 copies of the MP3 version in order to be in compliance (assuming they listened to the music on their respective computers and own CD players)?

    The shared folder argument is a red herring, intended to distract from what the RIAA is really trying to do — make ripping CDs legally purchased to one's own computer for personal use illegal.

    Rat bastards.

  • http://www.drumsnwhistles.com/ Karoli

    Let me clarify what I wrote above…it's murky.

    I am not referring to the 11 MP3 files Howell allegedly distributed via KaZaa. But the specific language that the RIAA uses in their supplemental brief broadens the definition of “distribution” — here's the language:

    “Virtually all of the sound recordings on Exhibit B are in the “.mp3” format. (Exhibit 10 to SOF, showing virtually all audio files with the “.mp3” extension.) Defendant admitted that he converted these sound recordings from their original format to the .mp3 format for his and his wife’s use. (Howell Dep. 107:24 to 110:2; 114:1 to 116:16). The .mp3 format is a “compressed format [that] allows for rapid transmission of digital audio files from one computer to another by electronic mail or any other file transfer protocol.” Napster, 239 F.3d at 1011. Once Defendant converted Plaintiffs’ recording into the compressed .mp3 format and they are in his shared folder, they are no longer the authorized copies distributed by Plaintiffs. Moreover, Defendant had no authorization to distribute Plaintiffs’ copyrighted recordings from his KaZaA shared folder.”

    I have never used KaZaA, Napster or Limewire. But I have a folder of shared music on my computer that contains my personal MP3s, ripped from CDs that I bought for full price.

    Does the act of placing them in my shared folder for my family's use make me a pirate?

    If these arguments are accepted by the court, the RIAA will indeed make the argument that ripping CDs to your hard drive is a crime. The only question will become whether it's a discoverable crime. I'm unwilling to give them that kind of latitude.

    They should amend the brief to make it clear that ripping a CD to one's computer is not a criminal act. Placing the MP3s into a shared folder is not a criminal act either, unless that shared folder is intentionally made available to others on a P2P network like KaZaA. It's not clear to me whether the 2000 MP3s they're trying to include were all in the KaZaA folder or not.

    By broadening the definition, they're opening the door to become more militant and more intrusive.

  • http://www.mathewingram.com/work mathewi

    I agree with your interpretation, Karoli — it's obvious that the RIAA
    believes simply copying them and putting them in a shared folder is a
    copyright offence, or they wouldn't have used the word “moreover.”

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  • http://burningbird.net Shelley

    Guys, the brief spent five pages defining what shared meant in this case — KaZaA shared folders, meant to have files publicly accessible for files to be copied across the internet.

    They didn't define 'shared' to be your little home network, where files from one Mac can be accessed by your PC or whatever. The brief talks about shared, in this case to mean a version of public distribution.

    Why must we go to such extraordinary means to overly vilify that which we don't agree with?

    The RIAA can't be 'bad' — it must be indulging in the ultimate of infamies…the lawyers will appear at our windows late one night, with police ready to take us away.

    Or must I remind you both of the risk of believing everything you read. Something about this is familiar.

    Thanks for the space to comment Mathew, but if I continue I'll just be branded a troll.

    Happy tarring.

  • http://www.mathewingram.com/work mathewi

    Shelley, no one is tarring or demonizing anyone. I think there is
    enough wiggle room in the RIAA's phrasing to allow the industry to
    argue that copying of any kind amounts to copyright infringement, and
    if you took the time to look at some of the commentary and filings
    made in the DMCA review I referred to I think you would agree — the
    industry's joint reply to Congress specifically says that just because
    they haven't pursued any action based on copying a legally acquired
    CD, that doesn't mean it qualifies as a non-infringing use.

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